Citation Nr: 0806079
Decision Date: 02/22/08 Archive Date: 03/03/08
DOCKET NO. 06-09 954 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Baltimore, Maryland
THE ISSUE
Entitlement to service connection for a claimed low back
disorder.
ATTORNEY FOR THE BOARD
G. Jackson, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1972 to August
1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2004 rating decision issued
by the RO.
The veteran requested a hearing at the Board in Washington,
DC in his March 2006 Substantive Appeal. He was scheduled
for such a hearing in November 2007, but he failed to report
for that hearing or provide an explanation for this.
Consequently, without more from the veteran, his hearing
request must be deemed to have been withdrawn. See 38 C.F.R.
§ 20.702(d) (2007).
In his March 2006 Substantive Appeal, the veteran also makes
claims of service connection for post-traumatic stress
disorder (PTSD), disability of the teeth and disability of
the feet. These matter are referred back to the RO for the
proper disposition.
FINDINGS OF FACT
1. The veteran is not shown to have manifested complaints or
finding referable to a diagnosed low back condition during
service or for many years thereafter.
2. The current lumbar disc disease is not shown to be due to
an injury or other event or incident of the veteran's period
of active service.
CONCLUSION OF LAW
The veteran's low back disability including that due to
lumbar spine disc disease is not due to disease or injury
that was incurred in or aggravated by active service; nor may
any arthritis be presumed to have been incurred therein.
38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107) became law. Regulations implementing the VCAA
provisions have since been published. 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a).
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claim, and
no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159.
Specifically, the RO has obtained records of treatment
reported by the veteran. There is no indication from the
record of additional medical treatment for which the RO has
not obtained, or made sufficient efforts to obtain,
corresponding records.
The Board is also satisfied that the RO met VA's duty to
notify the veteran of the evidence necessary to substantiate
his claim in March and August 2004 letters. By these
letters, the RO also notified the veteran of exactly which
portion of that evidence was to be provided by him and which
portion VA would attempt to obtain on his behalf. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In these letters, the veteran was also advised to submit
additional evidence to the RO, and the Board finds that this
instruction is consistent with the requirement of 38 C.F.R.
§ 3.159(b)(1) that VA request that a claimant provide any
evidence in his or her possession that pertains to a claim.
In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) reaffirmed principles set forth in earlier
Federal Circuit and United States Court of Appeals for
Veterans Claims (Court) cases in regard to the necessity of
both a specific VCAA notification letter and an adjudication
of the claim following that letter. See also Mayfield v.
Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v.
Nicholson, 20 Vet. App. 537 (2006).
The Mayfield line of decisions reflects that a comprehensive
VCAA letter, as opposed to a patchwork of other post-
decisional documents (e.g., Statements or Supplemental
Statements of the Case), is required to meet VA's
notification requirements.
At the same time, the VCAA notification does not require an
analysis of the evidence already contained in the record and
any inadequacies of such evidence, as that would constitute a
preadjudication inconsistent with applicable law.
The VCAA letter should be sent prior to the appealed rating
decision or, if sent after the rating decision, before a
readjudication of the appeal. A Supplemental Statement of
the Case, when issued following a VCAA notification letter,
satisfies the due process and notification requirements for
an adjudicative decision for these purposes.
Here, the noted VCAA letters were issued prior to the
appealed October 2004 rating decision. Moreover, as
indicated, the RO has taken all necessary steps to both
notify the veteran of the evidence needed to substantiate his
claim and assist him in developing relevant evidence.
The Board is also aware of the considerations of the Court in
Dingess v. Nicholson, 19 Vet. App. 473 (2006), regarding the
need for notification that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded. By a March 2006 letter the RO
notified the veteran of the evidence necessary to establish
both disability ratings and effective dates in compliance
with these requirements. Id.
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of his claim in this Board
decision. Rather, remanding this case back to the RO for
further VCAA development would be an essentially redundant
exercise and would result only in additional delay with no
benefit to the veteran. See Bernard v. Brown, 4 Vet. App.
384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426,
430 (1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time. If chronicity in service
is not established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
The Board notes that the service medical records are devoid
of complaints or findings referable to a low back disorder.
The separation examination was negative for pertinent
abnormality.
The records from service do show that the veteran underwent a
procedure for incision and drainage of an abscess of the
right buttock in April 1974. In July 1997, he underwent a
proctoscopy and anal fistulotomy for drainage from the site
of an incision scar to the right of the anus.
The postservice medical evidence includes records referable
to treatment with private health care providers for various
conditions. In September 1979, the veteran was seen for
complaints of back pain, vomiting and frequency of urination
in September 1979.
An April 1992 medical record indicated that there was mild
sclerosis about the facet joints at L5-S1. In a July 1992
record, the veteran was diagnosed with low back pain with
right sciatica, facet syndrome at L5-S1, and left
sacroiliitis.
A June 1994 VA general examination indicated that the veteran
had normal curvature of the spine and a normal range of
motion.
Other medical records show that the veteran was seen by a
private doctor in December 1995 for low back pain with
radiation down both of his legs. It was noted by way of
history that an accident in 1988 had initiated his lumbar
radiculopathy. The impression was that of chronic lumbar
radiculopathy.
In connection with ongoing treatment, a private health care
provider noted that the veteran was moderately disabled due
to his back. in April 2003. He was noted to have
degenerative disc disease with a probable herniated nucleus
pulposis on the right at L4-5. In November 2004, the veteran
presented at private medical facility for referral regarding
a 'ruptured' lumbar disc at L2-3.
To date, the RO has not afforded the veteran a VA
examination, with opinions as to the etiology of his claimed
back disorder. Such opinions are "necessary" under
38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159 when: (1) there
is competent evidence that the veteran has a current
disability (or persistent or recurrent symptoms of a
disability), (2) there is evidence establishing that the
veteran suffered an event, injury or disease in service or
has a disease or symptoms of a disease within a specified
presumptive period, (3) there is an indication the current
disability or symptoms may be associated with service, and
(4) there is not sufficient medical evidence to make a
decision.
In this case, the medical evidence serves to establish the
current nature of the veteran's claimed low back disorder.
However, there is no competent evidence linking the claimed
back disorder to a documented event or incident of the
veteran's period of active service. Thus, there is no
reasonable possibility that a VA examination would result in
findings favorable to the veteran's claim.
The veteran's current assertions of having received medical
care for a back condition in service are not supported by
other more reliable evidence in the file. This evidence
shows that he was seen on one occasion for nonspecific
complaints including for back pain after service in 1979 and
was first documented as having back pathology after he was
injured in an accident in 1988.
Significantly, the veteran does not identify an episode of
trauma or other specific incident in service as the cause of
his low back problems. On this record, without more
specificity, a VA examination could not provide a reasonable
basis for substantiating the veteran's claim. Accordingly,
the Board finds in this case that an examination with an
etiology opinion is not "necessary" to decide the appeal
See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir.
2003).
The medical evidence on review does not present a nexus for
linking the current low back disc pathology to service or
serve to establish a continuity of low back symptomatology
dating from service. To this extent, the Board finds the
veteran's lay assertions to be of limited probative value for
the purpose of deciding this appeal.
The only evidence of record supporting the claim are these
lay statements by the veteran. However, he is not shown to
possess the requisite medical training or credentials needed
to render a diagnosis or competent opinion as to medical
causation.
As such, a lay opinion cannot constitute competent medical
evidence and lacks all probative value. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Routen v.
Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434
(Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996).
In reaching this determination, the Board acknowledges that
VA is statutorily required to resolve the benefit of the
doubt in favor of the appellant when there is an approximate
balance of positive and negative evidence regarding the
merits of an outstanding issue.
In the absence of competent nexus evidence in this case, the
Board finds the preponderance of the evidence is clearly
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990); 38 U.S.C.A. § 5107(b). Hence, the appeal must be
denied.
ORDER
Service connection for a claimed low back disorder is denied.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs